David’s recent post on the Supreme Court’s decision striking down DOMA and allowing same-sex marriages to continue in California suggests that today represents “a good day for equality in this country.” I agree. I, like David, completely applaud the policy result in Windsor and I’m heartened that the continuation of same-sex marriages in the nation’s largest state help signal major cultural change nationwide on the issue. While this might be a good day for equality, however, I’d argue that it is not such a good day (or, more accurately, past few years) for the health of representative government.
Just in the last few days, we’ve seen the Court strike down DOMA on a 5-4 vote, a similar narrow vote striking down a crucial part of the Voting Rights Act, and a decision that continued but looked skeptically on states’ use of affirmative action. This week, I believe, cements the current Roberts Court as the most activist in all of American history. This Court has struck down law after law without much concern about the representative process. While it (barely) upheld most of the Affordable Care Act last year – while simultaneously opening the door to limitations on future congressional powers – it also struck down a key provision dealing with Medicaid expansion that will affect many low-income Americans nationwide. It was this same Court, of course, that absurdly decided in Citizens United that unlimited political expenditures was somehow protected by the First Amendment, casting aside decades of legal precedent and a major congressional statute. More obscurely but no less importantly, the Court, including over the past two weeks, has made it increasingly difficult for victims of discrimination or corporate greed to challenge harmful conduct by employers and businesses.
In the glow of the admittedly very positive developments concerning gay rights today, I urge progressives (and really everyone) to keep an eye on the big picture. We often complain that Congress can’t get anything done, and there’s a lot of truth to that thanks to extreme polarization and procedural tools like the filibuster. Given the Roberts Court’s expanding willingness to strike down federal and state statutes with abandon, however, the Court has become a major roadblock to even those statutes that manage to navigate the increasingly difficult legislative path.
It is disheartening to realize the sheer reach of the Supreme Court’s power in nearly all facets of politics nowadays. While conservatives bemoaned the “activist” Warren Court in the 1960s, it is worth noting that most of the Court’s decisions at that time struck down state statutes – many of which (though not all) were out of step with the rest of the country. The Roberts Court, by contrast, simply doesn’t seem to care about representative government at any level. Overwhelming majorities in Congress enacted and continuously re-authorized the Voting Rights Act? And the McCain-Feingold Campaign Reform Act? No matter – we’ll strike them down on the basis of flimsy reasoning. Meanwhile, the skepticism of state law is still very much present. Many states have enacted stronger consumer protections against corporate conduct, for example? Cities want strong gun control measures to cut down on crime? Who cares about federalism – we’ll strike them down.
This is not a healthy development for the body politic. In Federalist #78, Alexander Hamilton famously argued that the judiciary “will always be the least dangerous to the political rights of the Constitution” because the courts “may truly be said to have neither force nor will, but merely judgment.” That was in 1788, but the Roberts Court shows how poorly Hamilton’s observation applies in the modern era. It is increasingly the nine unelected members of the Supreme Court, and not the elected branches, that are determining the shape of contemporary America.
Sometimes this means good policy results for progressives. More often it has meant political victories for conservatives. Either way, it shouldn’t be seen as a victory for the present and future of American politics.
That may be true recently and in other eras, but the Warren court as you allude to went the other way. I don’t know if this is an official rule of jurisprudence, but in my view the burden of proof should always lie with the party challenging constitutionality. I don’t go as far as Bob Neer does because I am a strong proponent of judicial review, but the executives and legislatures also took oaths to uphold the Constitution and we should presume that they are doing so.
The Warren Court, I would argue, was the exception to the historically conservative trend of the federal courts. For example, the Dred Scott decision essentially legalized slavery everywhere. For decades after the Civil War, the federal courts were a bastion of pro-corporate conservatism. Liberals during the Populist and Progressive Era railed against the courts for striking down progressive legislation like the income tax and wage and hour regulations. Most famously, the Court struck down several of FDR’s initiatives (perhaps the only era comparable to the Roberts Court’s activism). Following the Warren Court, the Supreme Court has decided cases in a conservative direction more than they have in a liberal one.
The presumption of constitutionality is indeed a rule of jurisprudence, but one for which the Roberts Court apparently has little use.
I see the Roberts Court as what Republicans are like when they don’t have to worry about election. Don’t worry about all that god stuff that gets the rubes to the polls, keep an eye on the brass ring and make sure the oligopoly is impossible to dislodge.
I am troubled by the way that SCOTUS announced its decisions. Yesterday, they announced the voting rights decision, which, of course, caused a huge amount of concern. Then, the next day, they announced the DOMA and Prop 8 decisions, which caused celebration and made many people say nice things about SCOTUS. It feels to me like they are managing their news cycle! And, I don’t think that the Supreme Court should be trying to manipulate their public image.
That’s all you need these days to make laws for 313 million people: the whims of five unelected individuals — who can be bought, bribed or corrupted just like any other human beings. And of course, there is no requirement for even that many: the Court can have just one justice, according to the constitution. You want to think big, and that is a fine suggestion: if judicial review was intended by the framers, why didn’t they include it in the constitution?
…but just like the constitutional principle of “separation of church and state” they did not use those exact words. What they did write was,
and
Therefore, if a case comes before them, you are not seriously asking them to enforce a law when to do so would violate their oaths to uphold the Constitution above all else are you? I’ve never understood why you don’t accept this basic principle that makes our system work.
is the “who decides” aspect of this issue. Bob’s point is that since all federal officers – judges, legislators, presidents – take the same oath to uphold the Constitution, and since legislators and presidents are unquestionably more accountable to the people – the ultimate source of governmental authority in our system – why would you assign judges the last word on constitutional meaning? It’s a debatable and complicated proposition that’s not nearly as straightforward as you are making it sound. And I think the current, rather embarrassing situation on the Court, in which the entire fate of the nation seems to be up to Justice Kennedy in most cases, lends some support to Bob’s view.
The Constitution calls for one Supreme Court. Ultimately any penalty is applied via the judicial branch and the Supreme Court sits at the top of that branch, so if that Court decides it cannot enforce a law on Constitutional grounds, that’s it – there is no appeal. This is not to say that other officials can’t, won’t, or shouldn’t also decide that certain things would violate their own oaths and I do believe that the burden lies with the party challenging constitutionality, but to not let the Court decide would be like a coach or players saying they know the game well enough to not respect a referee’s call. The branches are equal and our republic has elements that are more democratic and elements that are less democratic. I do not therefore necessarily give more weight to branches popularly elected when it comes to constitutional judgement. In fact it is sometimes necessary to defend the Constitution against the people, though their representatives are welcome to have the final word via the amendment process.
It’s fine to argue that the power of judicial review was implicit in the original Constitution (though, as David notes, the issue is pretty complicated on this point. Especially since the power of judges was a controversial issue during the framing of the Constitution, one would think that such an important power would have been made explicit).
However, my main point is that if progressives are going to defend the power of judicial review, then there must be recognition that historically — including now — judicial review is on balance a bad thing for progressive policies. Flowery rhetoric about courts “protecting the rights of minorities” and “pursuing equality” won’t do if in practice the courts are just as bad, or worse, than the other branches in protecting these values.
Brown v. Board of Education is the favorite go-to case for progressive defenders of judicial review, but it’s blinded liberals to the fact that courts are more often bastions of conservatism. (And lest progressives argue that Brown was such a big exception that it makes the general conservatism of courts worth it, I’d remind them that virtually nothing changed in the South following the decision until Congress enacted the Civil Rights Act of 1964 ten years later).
You say:
But this is certainly not true. When Brown was decided, 17 states had segregated schools. By the end of 1957, 9 of the 17 states and had begun integration of their school systems. Another 5 states had some integrated schools by 1961.
Important milestones between1954 and 1964 attributable to Brown include:
– 1956: The Topeka Kansas public schools at issue were fully integrated.
– 1957: Little Rock Central High in Arkansas was integrated.
– 1958: Virginia was forced to keep open and integrate nine schools
– 1960: Louisiana public schools were desegregated.
– 1961: University of Georgia was integrated.
– 1962: University of Mississippi was integrated.
– 1963: University of Alabama & Clemson College in S.C. was integrated.
All of this was possible largely because of Brown v. Board of Education and the subsequent legal authority granted to the federal national guard to enforce that ruling.
Lot’s also changed in society along with and in part due to the late 50s to early 60s school desegregation. To say, “virtually nothing changed” until the Civil Rights Act is just not consistent with reality.
I appreciate the examples you cite, but they are a pretty thin reed to hang a claim that Brown changed much at all. When Brown was decided, virtually no black schoolchildren attended schools with white children. Ten years after the case, only about one percent of black children attended integrated schools. Not exactly a strong statement of Brown’s impact.
By contrast, desegregation happened very rapidly once Congress acted with the Civil Rights Act of 1964. That was the key moment, not Brown. Likewise, the Court did not integrate Little Rock — guys with guns did. Integration of universities was progress, but they were not the issue in Brown and in any case defenders of segregation cared much more about primary and secondary education than higher education.
Brown is held up as a paragon of judicial greatness, but given what Brown purported to do — desegregate public schools in the South — I fail to see how it could be considered a success. The real victory was finally getting congressional action years after Brown was ignored by virtually the entire segregation establishment.
Certainly judicial review (especially the “liberty of contract” stuff from Lochner and the use of the 14th Amendment against regulation of business) can be very detrimental to progressives. However, besides Brown, there have been dozens of important and progressive instances of judicial review advancing American society. To name just a handful in no particular order:
– Miranda v. Arizona (You know, Miranda rights)
– Roe v. Wade (Abortion but also privacy)
– Baker v. Carr (Redistricting/Democracy itself)
– Gibbons v. Ogden (Commerce Clause means something)
– Gideon v. Wainright (Right to appointed defense counsel)
– Griswold v. Connecticut (Right to Privacy)
– Loving v. Virginia (An awesomely ironically named case striking down laws against interracial marriage).
– Reno v. ACLU (Protecting the 1st Amendment rights of Internet users!)
Except for Reno v. ACLU, all of the cases you’ve listed are cases in which the US Supreme Court held that state laws were unconstitutional. I don’t think anybody here disagrees that the federal courts must have the power to do that; certainly, I don’t, and I know Bob doesn’t either. In discussing the propriety of judicial review, it’s important to distinguish cases in which state laws are struck down from cases declaring Acts of Congress unconstitutional – the issues regarding the proper balance of governmental power are quite different in those two scenarios.
Congress is just as capable of enacting unconstitutional legislation as any state is. Some would argue that parts of the Patriot Act are unconstitutional. Gun control and regulation is liable to challenges by those with an absolutist view of the Second Amendment. Of course the constitutionality of Obamacare was challenged by some. At first much New Deal legislation got tossed on constitutionality. Obviously I don’t agree with all of those arguments, but while I believe in the presumption of constitutionality I’m also glad judicial review is there when it’s needed.
Members of Congress and the president take the same oath to protect the U.S. Constitution as Supreme Court justices do. That’s because the three branches are supposed to be co-equal with one another in relation to the Constitution. That is not the case with state judges, legislators, and governors, all of whom are subject to the limitations of the Supremacy Clause.
The Supreme Court is America’s most nationalistic political institution, and for good reason — it has (sometimes) helped the natural splintering tendencies of federalism by pulling outlier states closer to the national consensus. For example: when most states adopt same-sex marriage, I think a Court decision striking down the same-sex marriage bans for the remaining dozen or so states will be most appropriate. A decision now striking down the laws of forty or so states is much more questionable. Striking down federal legislation is the most questionable of all.
This is a more limited defense of judicial review than most progressives would make. Given the Court’s past and present history, however, it is one that would be ultimately be friendliest to progressive policy results across the full range of issues liberals care about.
According to your logic.
Crack open Marbury v. Madison sometime: there you will find the whole thing laid out. Marshall wrote: “”It is emphatically the province and duty of the judicial department to say what the law is.” Wrong. Congress should make the laws, the President should administer the laws, and the Court should enforce the laws. It is the province of the elected branches to say what the law is. And as to duties, no such responsibility for the Court is written into the Constitution, which defines its remit. As to hoyapaul’s comment, it is exactly right: the Court is institutionally the voice of the establishment — lawyers are our aristocracy, as Tocqueville wrote so presciently in Democracy in America — and is inherently conservative, as its history demonstrates with exceptions that only prove the rule.
…to not let my biases about the merits or outcomes get in the way of my opinions on sound structure of a given polity. It amazes me though, for many of the reasons discussed, that federal bench nominations, are not a more widely discussed and determining factor in Presidential and Senatorial elections.
Especially since only a tiny sliver of cases decided by the federal appellate courts (around 1% or fewer) are ever reviewed by the Supreme Court.
Justice Sotomayor got in hot water after Obama nominated her to the Court when it was revealed that she said that federal circuit courts are “where policy is made,” but it was absolutely true. Anyone being honest would not dispute that statement, yet most people couldn’t care less about judicial nominations other than Supreme Court nominations.
Reading David’s post, the aspect I find most alarming about the VRA decision is its extremely thin legal grounds. Like Bush v Gore, it seems like an example of using the power of the Court for purely political ends.
My sense of the court, at least those concurring, was they felt Sec. 4 and 5 were on thin constitutional grounds in the first place. Unequal federal treatment of states is unconstitutional. The dissenters seemed to focus on sections 4 and 5 as the crucial tool to remedy discrimination, and without them, the VRA is less effective. Efficacy versus constitutionality — SCOTUS made the right call.
The wailing about returning to Jim Crow is overwrought. As a matter of law, how does removing these 2 sections dilute voting rights? It’s the entire VRA that is important; 4 and 5 are mechanical anachronisms, witness the higher percentage minority turnout in Georgia than in MA. If those sections were so needed, shouldn’t the Commonwealth be subject to federal oversight too?
Progressives simply want to federalize everything.
Please see the text of section 2 of the Fifteenth Amendment:
That explicit constitutional text grants Congress great deference when it comes to enforcing the voting right provided in section 1. That the majority chose to ignore this is further proof that the conservative allegiance to “textualism” is a sham. Here, it was conservatives that are the “living constitutionalists” (e.g. “times have changed! We must reverse older decisions!”) and liberals who were the constitutional textualists (as in, the power to enact the VRA is right there explicitly in the text of Section 2 of the 15th Amendment).
False. Or, at least, it used to be false. Before Shelby County was released, the doctrine of “equal sovereignty” was confined to the terms on which new states are admitted to the union. Roberts invented a whole new doctrine out of whole cloth, as has been widely remarked upon by legal commentators who are just now picking their jaws up off the floor after reading his train wreck of an opinion.
False. That is, indeed, a ridiculous statement – witness the cheering from the left that accompanied the invalidation of DOMA which returned the business of defining marriage to the states.
Progressives do want to federalize the protection of voting rights. And, in fact, they did so when the 15th Amendment was ratified, and again when the Voting Rights Act was enacted. Maybe you think those were both missteps; if so, we’ll have to agree to disagree.
…we have the opportunity to expand them in Massachusetts. The “cradle of liberty” is lagging embarrassingly behind countless other states in modernizing the election process to make it more accessible, efficient, accurate, and secure. Right now voters in North Carolina are trying to stop a roll back on early voting. Massachusetts on the other hand is one of only a handful of states that doesn’t even have early voting. Neither do we have online voter registration, pre-registration, post-election audits, nor a whole host of other common sense election modernization measures.
There is momentum to change all of that this year. A election modernization package is making its way through the legislature, but it needs some pushing from the public. If you want to stick it to SCOTUS by expanding voting rights, join up with Common Cause, MassVOTE, MASSPIRG, ProgressiveMass, ACLU, MIRA, and others for Election Modernization Lobby Day on Wednesday July 17. Click here for more info and to RSVP.
“We don’t have the power to strike down democratically enacted legislation…unless its McCain-Feingold or the Voting Rights.” – Justice Scalia